5.
Within the scope of the ample, general obligation of the States Parties to the
American Convention on Human Rights embodied in Article 1(1) to respect and to
ensure respect of the rights enshrined in the Convention, public authorities must
ensure to all persons subject to the jurisdiction of said States the full exercise of
protected rights, which is essential to the achievement of each individual’s life
project. If this right is violated, were reparation possible, it, would come close to
redress par excellence, i.e. restitutio in integrum. In most cases, however, this is
unattainable (as is the case of torture victims, who suffer from lifelong sequels).
6.
In the instant case of Gutiérrez Soler versus Colombia, the victim himself
expressed to the Court, as set forth in the this Judgment, that the torture inflicted
upon him deeply affected his worth as a human being, his self-esteem, his ability to
relate to others in terms of affection, his personal development, and his family ties
(para. 88). The Court so found and, as it has in past cases, avoided quantifying the
damage in monetary terms (already included in the determination of pecuniary and
non-pecuniary damages), thus preserving its method of redress related to the
satisfaction owed to the victim.
7.
The Court, in ordering the respondent Government in the instant case, inter
alia, the publication of the relevant parts of this Judgment, deemed that it was
intended as aimed at “redressing the substantial damage to Mr. Wilson Gutiérrez
Soler’s honor and life project and those of his next of kin,” as well as to prevent
repetition of events (torture and mistreatment) such as those of the instant case
(para. 105). Along these lines, with which I basically agree, and in order to
preserve the specificity of damage to a life project (which coexists with the moral
damage), the Court could and should have, however, taken a further step in the
precedent development of the concept of the right to a life project.
II.
Time, the Vulnerability of Human Existence and the
Life Project for the future
8.
As time consumes us all and continues to flow, building a life project might
seem insufficient to many who, aware of their own existential vulnerability, also
seek to build what I like to call the after-life. I addressed this issue in my Separate
Opinion in the recent Case of the Moiwana Community versus Suriname (Judgment
of June 15, 2005), in which this matter was, in my opinion, of central importance.
In the instant case of Gutierrez Soler versus Colombia, I will only refer to the
relevant parts of my reasoning.
9.
As I explained in the aforementioned Separate Opinion, I see no reason, in
view of time going by, why one should exercise restraint in searching for meaning
for one's life, for the life we know, for the world of those that are still alive; in fact,
in my opinion, both the life project and the after-life hold fundamental values (para.
69). Damage to the latter constitutes —as I went as far as to propose in my
aforementioned Separate Opinion in the case of the Moiwana Community- spiritual
damage, which has a direct bearing on what is most intimate to the human being,
namely, their inner life, their beliefs in human destiny, their relations with their
dead (para. 71). This category of damage embodies the principle of humanity in a
temporal dimension (para. 72).
10.
Unlike moral damage, damage to the life project and after-life is not
quantifiable —i.e. it is not susceptible of "quantifications"— as redress can only be
secured by means of obligations to do something which involve some form of
satisfaction (e.g. honoring the dead in the persons of the living) (para. 77). The